Wall Street Journal-Courts Flunk the Civics Test

The following article was sent to us by our finance guy Pete Speer and appeared in the April 8th edition of the Wall Street Journal.
For a review and information to order Mr. Sandler and Mr. Schoenbrod book go to Amazon.com.


Wall Street Journal
Courts Flunk the Civics Test
By ROSS SANDLER and DAVID SCHOENBROD
April 8, 2006; Page A9
On March 23, a New York appellate court ordered the state legislature to provide an additional $4.7 billion for operating the New York City schools, plus another $9.2 billion for construction. These are immense sums, even in the Empire State. The advocacy group that brought the suit, Campaign for Fiscal Equity, declared the court's decision would "get real action" because the legislature must "come up with a solution now, right now." This was good spin, but it's not true.

Contrary to a widespread misconception, courts have no power to force a state legislature to appropriate money; nevertheless the ersatz order, coming as it did in the final days of the state's budget process, could tilt the legislators towards more spending. This is apparently what is happening in Albany, where, in a partial tip of their hats to the court, legislators authorized $11.2 billion in new debt to pay for school construction in New York City.

And what was pulled off in Campaign for Fiscal Equity, Inc. v. New York seems to be part of a pattern. Last July in Kansas a similarly timed judicial decision prodded its state legislature to pony up a hefty increase in school funding. This year Texas is under a June 1 deadline to change the source of school funding. Before the scam spreads further, it's time to lay it bare.

In New York, the courts found that the government is violating a state constitutional clause that the legislature "shall provide for the maintenance and support of a system of free common schools, wherein all the children of the state may be educated." The Kansas case was to enforce a similar clause. That most children in New York City and elsewhere in the state are not getting much of an education is not the question. What to do about it is.

Plausible suggestions include freeing the schools from rigid union contracts and bureaucratic procedures that make it all but impossible to fire incompetent teachers, reward good ones and remove disruptive students from the classroom. Other potential solutions include more charter schools and vouchers. One strand of thinking relates school failure to cultural norms rather than lack of money. In New York City, spending per pupil is among the highest in the nation, $13,400, and the educational results among the worst. The plaintiffs chose, however, to focus on the solution -- more money -- that delights teacher union allies. The courts played along.

Most people assume that the legislature must cough up the cash because courts have the power of contempt, which allows them to punish those who disobey their orders. In the school case, however, the courts can't punish anyone. State legislators are not defendants in this case, and even if they were, they can't be punished because they are immune from suit. The state's treasury is immune because the court lacks authority to appropriate more funds and can't fine the state for the legislature's unwillingness to do so. The remaining defendants are officials, including Gov. George Pataki. They can't be held in contempt for failing to produce the money because they are powerless under the state constitution to spend money the legislature has not appropriated.

Longstanding impediments to coercing legislators and governors have never stopped courts from nullifying statutes that violate constitutional rights by, for example, segregating schools, or suppressing free speech. But courts rightly have a tougher time when they want to exercise the legislature's power of the purse.

There are, to be sure, cases where courts have indirectly pressured legislators to spend more. The leading one was in New Jersey, in 1976. After the state Supreme Court found that the state had violated a constitutional requirement that all school districts have equal per-pupil funding -- and the legislature failed to give more money to the poorer districts -- the court ordered state officials to close all the schools until the legislature equalized spending. Faced with that prospect the legislature passed an income tax to raise the extra money.

The New Jersey court argued that its job was to vindicate the constitutional right to equal spending and, if the legislature would not achieve that result by increasing spending, the court would get it done by reducing spending for everyone to zero. The argument has a certain cold logic, but it's a nonstarter in New York and Kansas, where the right being enforced is to a sound basic education.

If a New York court closed the schools, it would be the judges who violated the state constitutional right, by denying any education to all students. That would undercut the only leg the court has to stand on, the rule of law. Nonetheless, when the Kansas court raised the question of whether it should close the schools, the threat was enough to pry some money from the legislature.

New York's high court made a grave mistake when the judges transferred the power to decide what is a sound basic education from the legislators to themselves. Assuming it is too late to admit its error, the court should stick to issuing a declaratory judgment that the state does not deliver a constitutionally adequate education rather than ordering the legislature to do anything. This, as it happens, is precisely the position urged by both Gov. Pataki as defendant, and his counsel, Attorney General Eliot Spitzer.

The coercive force behind such a declaratory judgment would come from all those who want to improve the schools, including New York City Mayor Michael Bloomberg, who demanded and got responsibility for the city's schools, and the voters of the state, for whom there is no more important issue.

When courts claim that they have power to make legislatures spend more to vindicate a constitutional right to basic education, they tamper with a basic tenet of our democracy -- no taxation without representation. Voters are entitled to hold political officials accountable for the taxes they levy, the money they spend, and the education they produce. When judges pretend that legislators are their marionettes, the legislators can escape accountability, but only if the voters are fooled. They shouldn't be.

Messrs. Sandler and Schoenbrod are professors at New York Law School and authors of "Democracy by Decree: What Happens When Courts Run Government" (Yale University Press, 2003).